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Attorneys at Borders - What to Do to Protect Confidential Client Information

Every California attorney knows that he/she owes a duty of confidentiality to the attorney's client. According to Rule 3-100(A) of the California Rules of Professional Conduct, an attorney cannot reveal client information, and the attorney has a duty to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." But not every attorney may know how to uphold this duty in a situation where he/she is coming back from a trip and has his/her electronic device(s) that contains confidential client information seized or is subject to inspection by a U.S. Customs and Border Protection ("CBP") agent; especially since the law is not clearly settled on this issue yet.

Agents are currently allowed to open, log in, and search through all the electronic information stored on a traveler's electronic device when he/she enters Customs, and this act appears to not be in violation of the Fourth Amendment (See United States v. Arnold, 2008 WL 1776525; and see United States v. Flores-Montano, 541 U.S. 149 (2004)). However, some courts have placed restrictions on what agents can do with a seized device (See United States v. Cotterman, 709 F.3d 952 (2013) (holding that an officer may review computer files without reasonable suspicion, but may not conduct "forensic examination" of a computer without reasonable suspicion).

So what should a returning attorney do when he/she is traveling with an electronic device that has confidential client information and it is seized by an agent when going through Customs?

First, the attorney should try to not travel with electronic devices that contain confidential client information. Second, if the attorney had to travel with such confidential information, he/she should only travel with what is absolutely necessary. Third, if such electronic device is seized and subject to a search, the attorney should:

  1. State that you're an attorney;
  2. Clearly state that the electronic device has confidential information;
  3. Claim the attorney-client privilege of confidential information; and
  4. Ask to speak to the agent's supervisor (CBP's current policy is that if a claim of privilege is made, then the agent is required to consult with the agent's supervisor).

Currently, California is not clear on how far an attorney must go to protect the client's confidential information in this scenario. However, it is likely that an attorney would have to at least deal with potentially being questioned or detained for a period of time even if that means the attorney would miss his/her connecting flight or suffer some other inconvenience in order to have upheld his/her duty of client confidentiality.

For further information or questions, please contact Andrew Lee or any of the other attorneys at Shulman Hodges & Bastian LLP at 949-340-3400.

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